Same Priority Date for Some, Not All

Same Priority Date for Some, Not All

Scialabba v. De Osorio

US Supreme Court

 01/07/2015


On June 9th, 2014, the Supreme Court issued a plurality decision concerning retention of priority date and child status.

The principals, whose children aged out of the permissible age range, initiated action against U.S.C.I.S. (United States Citizenship and Immigration Services, the branch of the Department Homeland Security responsible for benefit appropriation). Principal beneficiary argued that the children should be subjected to original priority date as the original petitions for themselves. Thus, the children did not age out of the original priority date according in 8 U.S.C.S. § 1153(h)(3) concerning the retention of priority date. Principal beneficiaries prevailed, up to the Ninth Circuit Court.

However, the Court held that the provision of in 8 U.S.C.S. § 1153(h)(3) may be ambiguous, at least unclear. The Court found immigration a special subject, a matter of delicate administration privy to the Executive, as already spoken of by the Congress. Therefore, the Court should defer to agency’s interpretation because this case clearly is a Chevron-type scenario. The Court, thus, should defer to BIA’s construction of complex provision such as 8 U.S.C.S. § 1153(h)(3), so long as such interpretation is reasonable.

Exercising Chevron deference, the Court found for the Board of Immigration Appeals (or BIA, the office dealing with appeals from Immigration Judge’s decisions). BIA maintained that cases that require new sponsors cannot automatically convert from a family preference category to another.

Facts, further appeared favorable to the government. After all, when the principal beneficiaries actually filed for their children’s immigration visas, their children already aged out of the child status. Since principals themselves were family-sponsored, their eligibility to sponsor their children only started when they themselves became lawful permanent residents. Therefore, there was no original priority date to relate back for the aged-out children.

This is a plurality opinions, thus, is not authoritative. This case’s rationale shows respect toward federalism. After all, the Court prefers to show understanding toward difficult administration of immigration process.


 

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Richard Herman is a nationally-known immigration attorney with 20+ years of experience representing families and businesses in all aspects of immigration law. Richard was voted for inclusion in the 2015 edition of The Best Lawyers in America© and listed in Super Lawyers© for ten consecutive years, Richard is the founder of the Herman Legal Group, an immigration law firm serving clients in over 12 languages from offices in Cleveland, Columbus and Detroit, whose attorneys have represented diverse clientele, from Fortune 500 companies to undocumented workers, from technology entrepreneurs to NFL teams. He is the co-author of the acclaimed book, Immigrant, Inc. ---Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard has appeared FOX News (The O’Reilly Factor), ABC News 20/20, National Public Radio, and has appeared in the New York Times, USA Today, BusinessWeek, Forbes, Inc., PC World, Computerworld, CIO, TechCrunch and InformationWeek.

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